Month: February 2018

The bar exam is today and tomorrow. Approximately 60 applicants for admission by examination will sit at the Capitol PLaza. The following post originally ran on February 21, 2017.

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The bar exam is today and tomorrow. As I type this entry, 40 aspiring members of the Vermont bar are 1 hour and 14 minutes into the exam. I’m one of several proctors.

It’s not exactly legal ethics, but I thought I’d post a primer on the exam. My sense is that not many Vermont attorneys know that the examination process changed significantly in 2016.

In February 2016, the Vermont Supreme Court adopted new Rules of Admission. The rules went into effect on April 18, 2016. Among the most significant changes:

adopting the Uniform Bar Exam

eliminating the so-called “clerkship”

requiring successful examinees to complete Vermont-specific CLE and a “mentorship”

The Uniform Bar Exam

Vermont administers the Uniform Bar Exam (“UBE”). What’s that mean? Most notably, it means that there are no Vermont-specific essays.

For many of you, the bar exam included 6 essay questions drafted by the Board of Bar Examiners that tested Vermont law. No more. Now, the Vermont exam is, well, uniform. That is, an examinee who sits in Vermont takes the exact same exam as an examinee who sits in one of the 25 other UBE jurisdictions.

Essays have not disappeared altogether. It’s just that the essay questions are the same in each UBE jurisdiction.

On the morning of Day 1, examinees take the Multistate Performance Test. The MPT is best described HERE.

On the afternoon of Day 1, examinees take the Multistate Essay Examination. The MEE is best described HERE.

Day 2 of the exam should be familiar to all: the Multistate Bar Examination. You probably know it better as “the multiple choice.”

Scoring has changed a bit as well. Over the past several years, examinees received an MBE score and an essay score. To pass, an examinee had to score at least 135 on both the MBE and the essay. The overall total did not matter. Thus, an examinee who scored 135 on the MBE and a 135 on the essay passed, but an examinee who scored 170 on the MBE and 134 on the essay did not.

Now, examinees receive a UBE score that is a single number. Each UBE jurisdiction is authorized to set its own passing score. Not all are the same. A passing score in Vermont is 270.

UBE scores are portable. In other words, a score is good in every UBE jurisdiction. Like all UBE jurisdictions, Vermont allows examinees to apply for “admission by transferred UBE score.” For example, New Hampshire is a UBE jurisdiction. Odds are that someone who is taking today’s exam in New Hampshire will apply for admission in Vermont. As long as the person scores at least a 270, the person is eligible for admission in Vermont, even having taken the exam in New Hampshire.

Important! Achieving a 270 in another jurisdiction is NOT an automatic ticket into the Vermont bar. Applicants who score at least 270 in another UBE jurisdiction must still go through Vermont’s Character & Fitness review.

Elimination of the Clerkship

Many of you remember the “3-month clerkship.” Some of you might remember the “6-month” clerkship. Each was a pre-admission requirement. Each has been eliminated.

CLE & Mentorship

The clerkship has been replaced by post-admission CLE and mentorship requirements.

complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,

complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

For more information on the CLE and mentorship requirements, please visit this page.

Friday’s questions are here. I received several great responses to the Olympic post:

one reader was at the US-USSR game;

another was in Lake Placid for the ’80 Winter Games; and,

a third watched with family on tape-delay, and, despite knowing the result, managed to maintain the “confidentiality” of the USA’s historic upset.

And speaking of hockey, congratulations to the Marjory Stoneman Douglas High School hockey team! Yesterday, the squad won the Tier 1 state championship in Florida’s Lightning League. ESPN has the story.

Attorney called me with an inquiry. I listened and then said: “here is what the rule says – you ‘shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”

What specific topic did Attorney call to discuss?

A. a trust account scam;

B. a client who had filed a disciplinary complaint against Attorney;

C a client who has filed a motion for a new lawyer;

D. a client whose capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or some other reason. Rule 1.14.

Question 4

Lawyer’s practice focuses mainly on family law & criminal defense. A few years ago, Lawyer took a personal injury case on behalf of an injured plaintiff. Lawyer botched it and was sued for malpractice.

Plaintiff offers to settle the malpractice claim for $100,000 and Lawyer’s agreement to never again represent a personal injury plaintiff.

True or false: the rules prohibit Lawyer from accepting the offer.

True.Rule 5.6prohibits a lawyer from making or accepting an offer in which restriction on the lawyer’s right to practice is part of a settlement of a client controversy.

Question 5

I preach competence. Well, the person who is the answer to this question was more than competent as an Olympian.

This year, there’s a third-year student at the University of Pennsylvania Law School who won Olympic gold as a U.S. figure skater in 2002. Name her.

(Note: this post originally ran on February 25. Today, March 1, I’m updating it to reflect a reader’s report that “player” and “hater” aren’t the first words to code. The update appears at the end of the post.)

Plaintiffs Sean Hall and Nathan Butler alleged that Swift lifted the chorus to her hit Shake It Off from their 2001 song Playas Gon’ Play. The hook to this blog: stealing lyrics (copyright infringement) is the music industry’s equivalent of a disbarrable offense.

Anyhow, in the Swift case, the plaintiffs’ 2001 work included the following lyrics: “Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

And shake it off she did per this opinion from U.S. District Judge Michael Fitzgerald.

As noted by the Washington Post, Judge Fitzerald’s order is “peppered with judicial shade.” In other words, with the opinion, Judge Fitzgerald staked a claim as the federal judiciary’s leading baller, shot caller. (I have no idea if he’s got 20 inch blades on the Impala.)

Fitzgerald opened by taking judicial notice of a series of songs whose lyrics refer to “players” and “haters.” The list includes Fleetwood Mac’s Dreams (“players only love you when they’re playing”), Outkast’s debut single Player’s Ball, and Notorious B.I.G.’s Playa Hater.

Then, after reciting law and stuff, Fitzgerald got to the crux of the matter:

“The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused withthe concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’ Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of ‘playas, they gonna play’ and ‘haters, they gonna hate’ is sufficiently creative towarrant copyright protection.”

Almost there:

“It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players,haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”

And the coup de grace:

“To explicitly state the [plaintiffs’] argument is to see how banal the asserted creativity is. In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”

Hammer don’t hurt ’em!

There you have it folks. A federal court has announced that players and haters are so over. Banal. Unoriginal. Lacking in creativity. Lit? Not.

An era has ended.

By the way, how about the plaintiffs’ onions? Check out the lyrics that they sought to protect from “infringement”:

“Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

Blatantly ripped off from both Lil’ Troy and Bruce Hornsby!

Here’s the update: a Linkedin follower points out that, long before player and hater suffered their demises, noted record producer Rick Rubin held a funeral for the word “def.” World of Pop Culture has the story here.

Sorry for the late post. Serious case of writer’s block exacerbated by having stuff to do this morning. However, while tardy, I have big news.

Due to popular demand, I’ve amended the #fiveforfriday rules. Henceforth and heretofore, all 5 questions will be “open book, open search again, phone/text a friend.” That’s right – not just questions 1-4, but question 5 as well.

In other news, believe it or not, the Winter Olympics provide the tie to this week’s number. And it’s not that Vermonters have won 107% of the US medals. (I think we’ve only accounted for something like 98%. Talk about competence and the little State that could!)

No, here’s the tie: the first Winter Olympiad was held in 1924. The genesis of those first winter games? A suggestion made 107 years ago. The full story is here. Check it out if you wish.

I don’t really pay attention to the winter olympics. However, I’m easily entertained and, over the past week or so, I’ve derived vast entertainment from people who complain about NBC’s Olympic coverage. A common complaint: “i don’t watch at night because it’s tape-delayed and everybody already knows what happened. It’s ridiculous!”

Folks, if that’s your biggest problem these days, the first thing that you should do tomorrow morning is to buy a Power Ball ticket.

Of course, I might not be so cavalier if social media had been around in 1980. I’m referring to the Lake Placid Winter Olympics and the Miracle on Ice.

Here’s an excerpt from the Wiki post about the famed USA-USSR hockey showdown in the 1980 games:

“Prior to the game, ABC requested that it be rescheduled from 5:00 p.m. to 8:00 p.m. Eastern Time, so that it could be broadcast live in primetime hours. However, the request was declined by the IIHF, after the Soviets complained that it would cause the game to air at 4 a.m. Moscow Time, as opposed to 1 a.m. Moscow Time. As a result, ABC decided not to broadcast the game live for the U.S. audience, and tape delayed it for broadcast during its primetime block of Olympics coverage instead.[22] Before the game aired, ABC’s Olympics host Jim McKay openly stated that the game had already occurred, but that they had promised not to spoil its results. In order to accommodate coverage of the men’s slalom competition, portions of the game were also edited for time.[23] To this day some of the people who watched the game on television still believe that it was live.”

There are a handful of athletic events for which I can recall exactly where I was watching. That game is one of them. I remember that I watched on the couch in our living room. I am 107% certain that I was sick with some sort of sore throat and, as a result, had conned my mom into multiple bowls of ice cream during the game.

I don’t remember if I thought I was watching “live,” but I am certain that I watched not knowing the outcome. I agree – the moment wouldn’t have been the same had I known the result. So, for those of you annoyed by this year’s coverage from South Korea, I feel your pain.

Of course, I was 12. So, you still make me laugh.

By the way, the US won the game 4-3. Mike Eruzione scored the winning goal with exactly 10 minutes remaining in the game.

10 minutes left. The 7th goal.

107.

Onto the quiz!

Rules

None. Open book, open search engine, text/phone/email-a-friend.

Even question 5!

Unless stated otherwise, the Vermont Rules of Professional Conduct apply

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

A financial institution must notify the PRB whenever an instrument drawn on an attorney’s pooled interest-bearing trust account is presented against insufficient funds,

A. but only if the instrument is honored;

B. irrespective of whether the instrument is honored.

Question 2

Here are 3 aspects to a specific rule.

the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

the representation is not prohibited by law;

the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

What’s the 4th?

A. each affected client gives informed consent, confirmed in writing;

B. the deposit constitutes collected funds;

C. the limitation is reasonable under the circumstances;

D. other good cause for withdrawal exists.

Question 3

Attorney called me with an inquiry. I listened and then said: “here is what the rule says – you ‘shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”

What specific topic did Attorney call to discuss?

A. a trust account scam;

B. a client who had filed a disciplinary complaint against Attorney;

C a client who has filed a motion for a new lawyer;

D. a client whose capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or some other reason.

Question 4

Lawyer’s practice focuses mainly on family law & criminal defense. A few years ago, Lawyer took a personal injury case on behalf of an injured plaintiff. Lawyer botched it and was sued for malpractice.

Plaintiff offers to settle the malpractice claim for $100,000 and Lawyer’s agreement to never again represent a personal injury plaintiff.

True or false: the rules prohibit Lawyer from accepting the offer.

Question 5

I preach competence. Well, the person who is the answer to this question was more than competent as an Olympian.

This year, there’s a third-year student at the University of Pennsylvania Law School who won Olympic gold as a U.S. figure skater in 2002. Name her.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.” His boss finds out. Here’s their ensuing exchange :

(Scene) In the boss’ office.

Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?

George: Who said that?

Boss: She did.

George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

Today’s story is an oldie that, I’m embarrassed to say, I only found last night. It’s the story of a Kansas attorney who was disbarred for “inexplicable incompetence.” The disbarment order is here. It’s a doozy I suggest you start, however, with the coverage from The Topeka Capital-Journal, the ABA Journal, or the Wichita Eagle.

I can’t do the story justice. I’ll say this: it’s the story of a lawyer who dressed up as Thomas Jefferson for the supreme court hearing on whether he should be disbarred for thoroughly botching a capital murder case. And there’s video.

Anyhow, someday I’ll get my YouTube channel up and running. When I do, here’s how I imagine scripting this one:

Court: We’ll get right to the point. It’s come to our attention that during a capital murder trial you didn’t have any idea what you were doing, didn’t seek help, agreed to a contingent fee in a criminal case, and told the jury that your client was a “professional drug dealer” and a “shooter of people.”

Lawyer: (his ACTUAL REAL LIFE response) “I had no idea that cellphones had GPS capabilities at that time. Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.” (tech competence anyone?)

Court: Finally, it’s come to our attention that, during the penalty phase, after the jury had convicted your client, you argued that the jury should impose the death penalty for whoever had committed the crime.

Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead I ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

“Mike, what the heck do CC & BCC have to do with my duty of competence?”

Thank you!! The fact that you know you have a duty of competence is music to my ears!

Now, back to your question.

In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client. For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.

So, to bcc or not to bcc? That is the question. It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.

The posts reference advisory opinions from North Carolina and New York. The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client. Any or all can lead a lawyer right into the danger zone.

My team had a busy weekend. We won our quarterfinal game Friday night. Then, Saturday afternoon, the guys held off Edmunds, 25-23, in a semi-final thriller. That proved to be the end of the line, however, as Albert D. Lawton steam-rolled us in Saturday night’s championship. Despite the loss, I’m super proud of the players. They’ve grown so much since November and, even though defeat was apparent by halftime, they competed their tails off until the final buzzer.

There’s a rule that applies only to a specific type of lawyer. Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

Attorney called me with an inquiry. Attorney said “Mike, I represent a witness. The defendant’s attorney keeps contacting my client directly. I asked him to stop. He said he doesn’t need my permission because my client is only a witness, not a party. Is he right?”

What was my response?

A. Yes, he’s right.

B. The rule is unclear.

C. The rule is unclear, but, by case law, no, he’s wrong.

D. He’s wrong. The rule applies to any person represented in a matter.

Rule 4.2 applies whenever a lawyer knows that a person, party or not, is represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

A. 2 years

B. 6 years.

C. Wait, what? We have to keep copies of advertisements?

D. They don’t. The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True. I don’t know that I understand the rationale, but it’s in the rule. It’s Rule 1.17(a).

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

So, some of you know that I used to coach high school basketball. I retired after the 2013-14 season, having spent 15 seasons coaching the varsity at my alma mater, South Burlington High School.

This year, I got back into it. I took the job as the coach of the “B” team at Frederick H. Tuttle Middle School.

By the way, you know a sure sign of age? When you coach at a school that is named after someone who worked in the system when you attended it. Back when I was a student at South Burlington Middle School, Mr. Tuttle was the district’s superintendent.

Anyhow, back to 106.

I’ve noticed lots of differences between coaching varsity and middle school. Lots. One that stands out: the questions. I love the guys, but, wow! Can they ask questions!! Sometimes I feel like it’s 106 questions per day.

Often, the questions have nothing to do with what we’re doing. For instance, during yesterday’s practice, I reviewed a drill before we started it. When I was done, I asked “any questions?” A few hands went up.

(Middle schoolers still raise their hands. It’s awesome. High schoolers weren’t exactly into raising their hands.)

I called on a player. He said “coach, do we have to wear a tie to our game on Saturday?”

Nothing to do with the drill. You get the idea.

We had a lot of fun this year. We worked hard, improved, and, using basketball as vehicle, focused on 3 keys to life: be on time, be prepared, be respectful. We even won a few games in the process, finishing 10-4 in advance of this weekend’s season ending tournament.

Last night was our final practice. Over the course of the season, I realized that I didn’t miss coaching too much. I likely won’t coach again next year. But, last night, I also realized that, once the season ends, I’ll miss the players. Over a season, a routine develops. Relationships develop. I’ll miss those.

And, as I thought about it, I’ll miss the 106 daily questions. The questions represent an innocence, almost a naivete, that won’t last as the players transition from tweens to teens. As proud as I am of how they’ve grown as individuals and a team, there’s a certain melancholy that comes from knowing that, soon, they’ll no longer raise their hands, no longer ask the beautifully simple questions. And for whatever reason, I find that somewhat sad.

I’ll end with my favorite question.

In middle school, the “A” and “B” teams play back-to-back. At our first home game, I gathered the “B” players in the locker room as the final few minutes of the “A” game ticked off the clock. I went over the 3 goals we had for the game. When I finished, I said “any questions?”

Now, when a varsity coach asks “any questions,” the response, if any, tends to be something to do with the game plan. For example, “coach, did you say we’re trapping ball screens or not?” So, when a hand went up, I assumed it’d be a question along those lines.

Wrong.

I called on the player. He said “coach, when we go out to the court, should we turn the lights off in the locker room?” I paused, thinking he must be joking. Given my varsity experience, I expected another player to tell him to be quiet, albeit not in those terms.

But then I realized that 12 sets of eyes were intently focused on me, waiting for the answer.

I responded “why would we turn the lights off?”

“Coach, it would save energy.” Several nods of agreement around the locker room.

Again, I paused. Finally, I said “good question, but we don’t have to turn the lights off. As soon as we go out to the court, the ‘A’ team guys are coming back into the locker room, so let’s leave the lights on for them.”

The player who had asked looked me straight in the eyes, pointed at me, and said “Coach, that’s why you’re the coach!” Then, the team bounded out of the locker room eager to take on that day’s opponent.

Never discourage questions. Especially from kids. Someday you’ll miss the 106 that drove you crazy yesterday.

Onto the quiz!

Rules

None. Open book, open search engine, text/phone/email-a-friend.

Exception: Question 5. We try to play that one honest.

Unless stated otherwise, the Vermont Rules of Professional Conduct apply

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

There’s a rule that applies only to a specific type of lawyer. Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Question 2

(this one keeps happening, so I’m going to keep asking)

Attorney called me with an inquiry. Attorney said “Mike, I represent a witness. The defendant’s attorney keeps contacting my client directly. I asked him to stop. He said he doesn’t need my permission because my client is only a witness, not a party. Is he right?”

What was my response?

A. Yes, he’s right.

B. The rule is unclear.

C. The rule is unclear, but, by case law, no, he’s wrong.

D. He’s wrong. The rule applies to any person represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

A. 2 years

B. 6 years.

C. Wait, what? We have to keep copies of advertisements?

D. They don’t. The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

Rule 1.1 requires lawyers to provide clients with competent representation. As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.” I am not saying that you are required to. Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.” The opinion is here.

The upshot: it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse. She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall. Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook. The defense requested access to the photos, which plaintiff had set to “private.” Plaintiff declined to provide access.

The defense moved to compel production of the photos. The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony. As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production. An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial. In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length. Here are two key takeaways:

As I’ve often said, electronically stored information is no different from any other information. Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.

A quote from the NY Court’s opinion (citations deleted):

“Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
privilege But when a party commences an action, affirmatively placing
a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

89 years ago today, almost to the minute, seven men were murdered in Chicago’s Lincoln Park neighborhood. The incident became known as the Saint Valentine’s Day Massacre. Al Capone is widely regarded as the criminal mastermind behind the killings.

As bar counsel, I’m intrigued by one aspect of the events that led to Capone’s conviction and incarceration. My intrigue lies in the so-called Mattingly Letter. It’s a letter that Capone’s tax lawyer provided to treasury agents and that was eventually used against Capone at trial.

Douglas Linder is a professor at the University of Missouri-Kansas City School of Law. He has a website dedicated to Famous Trials. Among others, Professor Linder has written on the trial of Al Capone.

Per Professor Linder, as of 1929, Capone had never filed a federal income tax return. So, the Department of Treasury launched an investigation into whether Capone had committed income tax evasion.

Lawrence Mattingly was Capone’s tax lawyer. In April 1930, Mattingly agreed to let “revenue agents” interview Capone. The transcript of the interview is here. Here’s an excerpt of what would become a key segment:

Revenue Agent RALPH HERRICK: I think it is only fair to say that any statements which are made here, which could be used against you, probably would be used.

LAWRENCE MATTINGLY, Capone’s tax lawyer: Insofar as Mr. Capone can answer any questions without admitting his liability to criminal action, he is here to cooperate with you and work with you.

HERRICK: What records have you of your income, Mr. Capone-do you keep any records?

CAPONE: No, I never did,

HERRICK: Any checking accounts?

CAPONE: No, sir.

HERRICK: How long, Mr. Capone, have you enjoyed a large income?

CAPONE: I never had much of an income.

HERRICK: I will state it a little differently-an income that might be taxable?

CAPONE: I would rather let my lawyer answer that question.

MATTINGLY: Well, I’ll tell you. Prior to 1926, John Torrio, who happens to be a client of mine, was the employer of Mr. Capone, and up to that point it is my impression that Mr. Capone’s income wasn’t there. He was in the position of an employee, pure and simple. That is the information I get from Mr. Torrio and Mr. Capone.

A few months later, Mattingly met again with federal agents. As the meeting ended, he provided the agents with this letter. Mattingly opened the letter by stating:

“The following statement is made without prejudice to the rights of the above-mentioned taxpayer in any proceedings that may be instituted against him. The facts stated are upon information and belief only.”

He closed by conceding:

“I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.”

Several months later, a grand jury indicted Capone.

Eventually, Capone and the government reached a plea agreement under which Capone would’ve served 2.5 years. A judge rejected the plea, stating:

“The parties to a criminal case may not stipulate as to the judgment to be entered. It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.”

As trial neared, the government obtained information establishing that Capone had likely bribed a significant portion of the jury pool. The prosecution team notified the judge. Per Professor Linder, here’s what happened next:

“Judge Wilkerson took his seat at the bench and looked out over the packed courtroom. He called the bailiff to the bench. ‘Judge Edwards has another trial commencing today,’ he told the bailiff. ‘Go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Edwards.'”

At trial, the government sought to introduce the Mattingly Letter through the agent to whom Attorney Mattingly had delivered it. The defense objected. The court admitted the letter as proof that Capone had made certain statements, albeit not as proof of those statements. (yeah, right.) A transcript of the testimony surrounding the letter’s admission is here.

The prosecution referred to the letter during its closing argument. That portion of the summation, which I found enthralling, is here. Here’s my favorite part:

Referring to Attorney Mattingly, the prosecutor argued:

“He had tried to get the revenue agents to say that the admission would not be used against his client; now, in the letter, Mattingly is saying it himself. The letter says, “‘his statement is made without prejudice to the taxpayer in any criminal action that may be instituted against him.'”

The prosecutor continued:

“Suppose a speeder, when stopped by an officer, should say; ‘I am telling you this without prejudice, officer; I don’t want it used against me; but I was going 50 miles an hour.’ Suppose a gambler could tack a little sign on a roulette, ‘This device is not to be used as evidence against me.’ Suppose a murderer could put a sign on his gun, “This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be! And yet, that is what we have here, ‘I am telling you this, but it is not to be used against me.’ “

In the end, Capone was convicted and sentenced to 11 years in prison. Admissions from his own tax attorney appear to have played a significant role in the conviction.

Competence. Client confidences. You be the judge.

An intriguing aside: one of the government’s key informants in the Capone investigation was Eddie O’Hare. O’Hare held the patent for the mechanical rabbit that lures greyhounds around a race track. He also ran dog tracks for Capone. Eddie was murdered shortly before Capone was released from prison.

The intriguing aside? Eddie’s son, Edward, was a naval pilot. He was the Navy’s first “flying ace” and the first member of the Navy to receive the Medal of Honor in World War II. He was shot down in combat in 1943 and never found. Chicago’s O’Hare Airport is named for him.